State AG to investigate tracking of cellphone users

This is one of the menus Android phone and tablet users have to navigate in efforts to actually block Google from tracking movements and other information. (Capitol Media Services photo by Howard Fischer)

PHOENIX – Saying consumer privacy is being invaded, state Attorney General Mark Brnovich has launched an inquiry into whether a major tech firm is violating the rights of Arizona residents by tracking their movements and activities through their cellphones – even after the users think they've told the company to stop.

In what appears to be the first such move in the country, Brnovich's office has awarded a contract to a Washington, D.C. law firm to investigate how this company stores consumer location data through smartphone operating systems "even when consumers turn off 'location services' and take other steps to stop such tracking.'' A copy of the contract was obtained by Capitol Media Services.

The part of the contract listing the firm to be investigated is redacted.

The contract was signed just a week after the Associated Press reported that Google was tracking users' location even after people turned off the "location history'' option on their cellphones and tablets with the Google-created Android operating system.

Brnovich declined to confirm that the target is Google.

"I can't say anything other than you don't need a weatherman to know which way the wind blows,'' he said, quoting a line from a Bob Dylan song.

A Google spokesman would not comment on the inquiry, saying only that the information the company gathers "helps us provide useful services when people interact with our products, like locally relevant search results.''

He also said that there are ways for users to delete location history and web activity.

But Brnovich said that process is opaque to users who think that turning off their location history – an option on a top-level Google menu – will do the trick.

"I should not be a tech expert in order to figure out how not to have a third party know everything about my private life, including my emails, my conversations with my wife, my kids, what they're up to, how many hours I spend watching sports or checking scores on my phone, how long I spend at the mall on Sundays,'' he told Capitol Media Services. "It really is Big Brother-esque.''

Aide Ryan Anderson said it's even more basic than that. He said users who think they're opting out of having their information shared by clicking off "location sharing'' are being lied to.

"It's a fake button,'' he said. "It doesn't actually do anything.''

Nor does Anderson think that providing an actual way to stop tracking – one that's not readily apparent – means a company is not deceiving consumers.

"Then why even put 'location services' up in the first place?'' he asked. "It gives consumers the perception that they're actually doing something to protect their privacy when, in fact, they're not.''

And Brnovich said the default setting should be that location sharing is off.

"You should have to opt in as opposed to opting out,'' he said.

(See sidebar on ways to try to turn off information sharing with Google.)

What gives Brnovich some power over the international company is the state's extensive Consumer Fraud Act.

That's the same law that he used to get refunds for Arizonans who purchased what they thought were clean-burning diesel-powered vehicles from Volkswagen. Brnovich even got a court to rule that the allegations of misleading Arizonans was enough to give him jurisdiction over that multinational firm.

It's the same here.

In this case, he said, the company in question is making representations to Arizona consumers that once they turn off "location services'' that the practice stops. That, he said is not true.

And it's more than just where someone is – and has been.

"If they're accessing the contacts of your phone without your permission, that means they are doing things that you either ultimately didn't want done but they did anyway, or alternatively, they're collecting information on you without telling you that they're doing it,'' Brnovich said.

"They're essentially creating a profile on you,'' he said. "They literally can know what you want to buy before you even know.''

What it ultimately comes down to, Brnovich said, is who has the right to anyone's personal data.

"Quite frankly, I do think as a human being I have a property right in my information, my data, things about me, who I deal with, where I go,'' he said. But he said it goes beyond that.

"The dignity of being a human being is not having everyone know, through some third party, every single thing about what we do,'' Brnovich said.

"I've heard a lot of people say, 'Who cares?' '' he continued. "But if you don't care, then why do people have passwords?''

Brnovich acknowledged that others gather information about Arizona consumers without their consent and sell it to third parties, particularly credit bureaus. But he said this is far different.

"They're collecting vast amount of data, including location services, where you're at, how long you're at the store and everything else, which is much more invasive than let's say someone running your credit report,'' he said.

And Brnovich said consumers have a right to request a copy of their credit report, get to find out exactly what is being reported on them, and ask the company to remove erroneous information. That, he said, is not an option with the kind of tracking being done here.

While Congress and federal authorities have raised questions about tracking, there is no evidence that any have pursued investigations or litigation to stop the practice.